98 Formal Ethics Opinion 5

April 16, 1998

Disclosure of Client's Prior Driving Record

Opinion rules that a defense lawyer may remain silent while the
prosecutor presents an inaccurate driving record to the court provided the
lawyer and client did not criminally or fraudulently misrepresent the driving
record to the prosecutor or the court and, further provided, that on
application for a limited driving privilege, there is no misrepresentation to
the court about the prior driving record.

Inquiry #1:

Client was charged with driving while impaired (DWI). Attorney A
represented him at trial where Client was convicted. At the sentencing hearing,
the prosecutor informed the court that Client had no record of prior
convictions for DWI. Attorney A and Client were aware, however, that Client was
convicted of DWI in federal court but the federal court failed to forward
information regarding the conviction to the North Carolina Department of Motor
Vehicles for inclusion in Client's driving record. Therefore, when the
prosecutor checked the driving record, he found no record of the prior
conviction. At the sentencing hearing, Attorney A and Client remained silent
when the prosecutor informed the court that Client had no prior convictions for
DWI. Neither Attorney A nor Client made any affirmative misrepresentations to
the court about Client's driving record. The judge sentenced Client to
punishment level three which can only be imposed if the court determines that
the defendant has not been convicted of a prior DWI within the previous seven
years.

Was it unethical for Attorney A to remain silent when he heard the
prosecutor give erroneous information to the court?

Opinion #1:

No, it was not unethical for Attorney A to remain silent. The
burden of proof was on the State to show that the defendant's driving record
justified a more restrictive sentencing level. A defense lawyer is not required
to volunteer adverse facts when the prosecutor fails to bring them forward. The
duty of confidentiality to the client is paramount provided the defense lawyer
does not affirmatively misrepresent the facts to the court. See Rule 1.6(c) and
Rule 3.3(a)(1) of the Revised Rules of Professional Conduct; CPR 313 (lawyer
may not volunteer to the court confidential information about a client's prior
convictions); and RPC 33 (lawyer may not reveal confidential information about
a client's prior criminal record to the court but may not misrepresent the
client's criminal record). Although Rule 3.3(a)(2) prohibits a lawyer from
failing to disclose a material fact to a tribunal "when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the client,"
this rule was not violated because Client's driving record was inaccurate
through no fault of Client and Client did not criminally or fraudulently
conceal the prior conviction from the prosecutor or the court.

Inquiry #2:

Client wants a limited driving privilege. To obtain the privilege,
Client must petition the court by filing a form prepared by the Administrative
Office of the Courts (AOC). To be eligible for a limited driving privilege
under G.S. §20-179.3, the court must find that the defendant, within the preceding
seven years, was not convicted of an offense involving impaired driving.
Although the AOC form does not require the defendant to represent to the court
that the defendant has no prior DWI convictions, the court must find, and so
acknowledge on the form, that there is evidence that satisfies the statutory
requirements for the issuance of a limited driving privilege.

Assuming that at no point in the process Attorney A or Client will
be required to misrepresent Client's prior driving record to the court, may
Attorney A petition the court for a limited driving privilege for Client?

Opinion #2:

No. Unlike the prior inquiry, in this situation the burden of
showing eligibility for a limited driving privilege is on the defendant. By
petitioning the court for the privilege, the defendant is making an implicit
representation to the court that he has no prior convictions and is eligible
for the privilege. Attorney A is aware that this is a false representation of a
material fact and he may not participate in its presentation to a tribunal by
filing the petition. Rule 3.3(a)(1).